Tag Archives: Maura Corrigan

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A group of people scheduled to be cut off from welfare benefits under the new 48 month lifetime limit have filed a federal suit to block the law from taking effect. [The Detroit News].

The lawsuit, filed against Human Services Director Maura Corrigan, said immediate intervention is needed to prevent more than 25,000 parents and children from losing benefits. The welfare recipients from Saginaw, Genesee and Macomb counties asked a federal judge to issue a temporary restraining order and preliminary injunction, according to the complaint filed in U.S. District Court in Detroit.

According to the lawsuit, Corrigan is violating the recipients’ rights under the due process clause of the 14th Amendment to the U.S. Constitution. The recipients claim Corrigan sent them pre-termination notices that cite a “secret policy” that hasn’t been made publicly available and which provides a vague, generic explanation for why benefits are being terminated.

Michigan Court of Appeals judge Brian Zahra was appointed by Governor Rick Snyder to replace Maura Corrigan on the Michigan Supreme Court.

In a statement, Chief Justice Robert P. Young Jr. said Zahra is an excellent choice.

“I have known Justice Zahra almost since he began practicing law. He has had a remarkable career as a lawyer and as a judge; he is widely recognized as one of the state’s top jurists,” Young said. “I believe that this Court has adopted more of his decisions than those of any other sitting lower court judge.

“Justice Zahra will bring not only his considerable intellect but also his experience as a judge at all levels of our system. As a jurist committed to following the rule of law, he is a worthy successor to my dear friend Justice Corrigan, who is departing to take on the challenge of protecting Michigan’s abused and neglected children.”

Snyder’s pick follows through on a promise the new governor made to select a “rule of law” justice to replace Corrigan, said Robert S. LaBrant, senior vice president of political action and general counsel for Michigan Chamber of Commerce.

“His record as a Michigan Court of Appeals judge shows that he is a rule of law judge,” LaBrant said. LaBrant added that Zahra’s track record of winning elections – twice since his appointment to Court of Appeals in 1999 – makes him a “solid appointment” who can win when he has to run for re-election in 2012 and 2014.

Snyder didn’t name Zahra’s successor in the Court of Appeals at the press conference.

The Sixth Circuit has turned down what it describes as Geoffrey Fieger’s “latest attempt to involve the federal courts in his long-running dispute with several justices of the Michigan Supreme Court.”

In Fieger v. Gromek, et al., the Southfield attorney took another run at Justices Maura Corrigan, Robert Young, Stephen Markman and former Justice Clifford Taylor who, thanks to his losing re-election bid in 2008, is no longer a party to the suit. They’ve been instrumental in zapping some very large judgments Fieger obtained for his clients. So, Fieger has been, and probably will always be, their very vocal critic.

And, according to Sixth Circuit Judge Julia Smith Gibbons, the four have dished it right back:

The justices have publicly responded to Fieger’s comments during the course of their re-election campaigns, suggesting to the citizens of Michigan that being despised by Fieger is not necessarily a bad thing.

Fieger’s previous federal-court attempts to keep Corrigan, et al. from hearing his appeals have focused on violations of his clients’ rights to a fair and impartial tribunal.

In Fieger v. Gromek, he took a more personal tack. From Gibbons’ opinion:

Rather than assert the alleged harm to his clients’ interests by the potential absence of an impartial tribunal, the current suit seeks to vindicate Fieger’s own personal interest “to pursue his chosen profession, avocation and occupation free from reprisal for exercising his First Amendment rights … and to have his cases … decided by a fair, independent, and impartial tribunal.”

Fieger alleges that the justices’ “public, personal, political, and professional animus” toward him requires their recusal and that the justices’ failure to do so violates his Fourteenth Amendment right to due process of law.

U.S. District Court Judge Mariann Battani dismissed the case under the Rooker-Feldman doctrine. Fieger appealed.

Gibbons noted that the doctrine only applies when the alleged harm is based on a past state-court judgment. So, Fieger couldn’t complain about the justices’ prior failures to recuse but he could “potentially” claim that future failures would violate his 14th Amendment rights.

More from Gibbons:

On remand, the district court determined that while Fieger had brought both facial and as-applied challenges to Michigan’s recusal procedure, only the facial challenge survived the issuance of our mandate. …

The district court reasoned that an as-applied challenge “in future cases” necessarily “does not and cannot exist” because as-applied challenges can only concern past actions of the parties involved. … According to the district court, as-applied challenges exist solely “to redress existing violations,”not future ones. … Turning to the merits of the remaining facial challenge, the district court found that Fieger’s claim could not succeed because Michigan’s existing recusal procedures would not be clearly unconstitutional in all circumstances.

Gibbons then noted that Battani didn’t get it exactly right:

It is clear that our prior holding explicitly acknowledged that Fieger’s suit contained an as-applied challenge to Michigan’s recusal rules in addition to his facial attack. … As we did not consider that our holding prohibited Fieger from advancing his as-applied challenge on remand, it was error for the district court to cite our opinion as the basis for its decision to refuse to consider the claim.

But it’s all a moot point now said Gibbons:

On November 25, 2009, the Michigan Supreme Court formally amended MCR 2.003, specifically providing for its application to justices of that court. …
The amendments also incorporate several changes that directly address and clarify the issues underlying Fieger’s challenge.

For example, the disqualification rule now expressly addresses the question of bias or any appearance of bias that may arise from a judge’s campaign speech: “A judge is not disqualified based solely upon campaign speech protected by Republican Party of Minn. v. White, 536 U.S. 765 (2002), so long as such speech does not demonstrate bias or prejudice or an appearance of bias or prejudice for or against a party or an attorney involved in the action.”

On a 4-3 vote, the Michigan Supreme Court has upheld a Court of Appeals decision that held a hospital could be held vicariously liable for two doctors who may have breached a statutory duty to report suspected child abuse.

The key holdings by COA Judge Donald Owens, joined by Judge William Whitbeck: a failure-to-report claim does not sound in medical malpractice and a hospital may be held vicariously liable if staff doctors do not comply with MCL 722.623, which triggers a duty to report when there is “reasonable cause to suspect child abuse or neglect.”

Judge Peter O’Connell, dissenting in Lee, said doctors will be quick to report anytime a child under their care has a bump or a bruise to avoid litigation based on an alleged breach of the reporting duty.

Because MCL 722.623 created a new statutory duty to report suspected abuse or neglect, defendants make a good argument that the Child Protection Law provides exclusive remedies for violation of the duty. …
Under the Child Protection Law, only individuals, not institutions, are required to report. MCL 722.623(1). And only a “person who is required … to report an instance of suspected child abuse or neglect and who fails to do so” is liable for resulting civil damages, MCL 722.633(1). Accordingly, I question whether an institution may be held liable for a reporting violation. …

[T]he Court of Appeals held that a complaint against physicians for alleged failure to report abuse sounds in ordinary negligence rather than medical malpractice. But, as the dissenting Court of Appeals judge aptly explained, doctors use medical judgment to determine whether a child has been abused and, therefore, whether abuse should be reported.

Accordingly, a doctor often will have “reasonable cause to suspect child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of different facts and knowledge than would a layperson who is required to report abuse pursuant to the statute. Thus, although laypersons may be held to ordinary negligence standards when they fail to report potential abuse, when a doctor fails to report his medical expertise is called directly into question.

Young joined Corrigan’s dissenting statement.

Markman echoed Corrigan’s statement that the issues are “jurisprudentially significant.”

Specifically at issue here is: (a) whether a claim against a physician based on a violation of the statute sounds in medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to vicarious liability under the statute. In what are clearly thoughtful majority and dissenting opinions, the Court of Appeals held that a claim based on the Child Protection Law sounds in ordinary negligence and that vicarious liability is applicable.

Pro se prisoners’ appeals will be considered filed when they place the legal documents in the prison’s outgoing mail system, under Michigan Court Rule amendments the Michigan Supreme Court adopted yesterday on a 5-2 vote.

The rule applies to appeals from administrative agencies, appeals from circuit court (both claims of appeal and applications for leave to appeal), and appeals from decisions of the Court of Appeals to the Supreme Court.

Why did the MSC do this? You may be shocked to learn that prison mail systems do not always operate as efficiently as the U.S. Postal Service. Chief Justice Marilyn Kelly presented her view on the situation in a concurring statement to the amendments:

This Court has seen numerous prisoner appeals rejected as untimely despite the fact that they were delivered to the prison mail system before the filing deadline. In one case in which the appeal was not timely received, the prisoner placed it in the prison mail system more than two weeks before the filing deadline. See In re Kinney, 483 Mich 944 (2009) (KELLY, C.J., concurring).

In dissent, Justice Maura Corrigan said the rule is unnecessary and noted that Michigan provides “inordinately generous” filing deadlines.

The prison mailbox rule that the Court now adopts, however, unnecessarily favors prisoners by extending their rights to appeal and thereby delays finality of their cases. The rule clearly does not engender equality of treatment, but establishes special treatment for prisoners only.

Young acknowledged that prisoners are not on equal footing with members of the general public.

Certainly, a dilatory prisoner may be more disadvantaged than a dilatory member of the public. However, imprisonment is not without its inconveniences. …

Rather than acknowledge that the generosity of our filing deadlines renders a mailbox rule unnecessary, the majority incentivizes delay by tardy filers who apparently cannot file their papers within either a 42-day period or a 365-day period. While the mailbox rule is premised on the federal system, the majority fails to acknowledge that inmates in the federal system have only 10 days in which to file their application.

It is one thing to ensure that imprisoned defendants have fair access to the courts. It is entirely another to reward a lack of diligence and cunctatory behavior.

Ok, anyone out there who has not sent a law clerk rushing to the courthouse with a last-minute, beat-the-deadline filing, please raise your hand.

Fears that “the appearance of impropriety” standard may be too low and too subjective might be put to rest, with the release of the first ruling in a Michigan Supreme Court disqualification motion.

Southfield-based attorney Geoffrey Fieger had moved to disqualify justices Stephen J. Markman, Robert P. Young and Maura D. Corrigan in Anthony PELLEGRINO v. AMPCO Systems Parking (No. 137111). Fieger claimed those justices are biased against him and his firm, based on past political campaign speech.

But Markman cited staleness, having said during his 2000 reelection campaign only that Fieger had made campaign contributions to his opponents; and once during a speech to a medical society, Markman had made a statement about “trial lawyers” but did not mention Fieger nor his firm by name.

And the statements are just so old, Markman wrote: “He mistakenly attributes to 2002 several matters that are supported by exhibits having occurred during 2000. While, properly, there may be no statute of limitations to claims of bias or prejudice, the staleness of a complaint must at least constitute one factor in assessing the ‘appearance of propriety’ …”

In deciding some 40,000 cases, Markman said, “Counsel has prevailed in those cases in which, in my judgment, the law was on his side, and he has not prevailed in those cases in which, in my judgment the law was not on his side.”

Further, he pointed out that he had once before disqualified himself from participating in a Fieger case, Fieger v Cox, 480 Mich 874 (2007), because it pertained to Markman’s reelection campaign in 2004.

Though certainly the newly adopted MCR 2.003 states that the appearance of impropriety is a ground for judicial disqualification, Weaver wrote in her concurring statement, “The statements made by Justice Markman were made before this Court adopted MCR 2.003 as amended. We will not apply the appearance-of-impropriety standard retroactively to statements made by a justice concerning a party or party’s attorney prior to the rule’s amendments. However, we will apply the standard prospectively to statements made by a justice concerning a party or a party’s attorney from the date that the order amending MCR 2.003 was entered.”

Kelly also noted the staleness of the complaints against Markman.

“It is not alleged that Justice Markman has made subsequent public comments about attorney Geoffrey Fieger,” she wrote. “Moreover Justice Markman’s voting pattern over the past decade does not reflect bias against Mr. Fieger or the appearance of bias …”

“Because I question defendant’s right to appellate relief while she is in contempt of the trial court’s orders, and to avoid the harsh sanction of outright dismissal, I would explore the approach of the Arizona Supreme Court in Stewart v Stewart, 91 Ariz 356 (1962), and condition the grant of any relief this Court concludes is otherwise appropriate on defendant’s compliance with the trial court’s orders.”

Exactly. The fugitive disentitlement doctrine is based on the notion that an appellate court can boot an on-the-run criminal defendant’s appeal.

The MSC is mulling whether to adopt some version of the doctrine in civil settings and has asked the parties in this hotly contested divorce case for briefs on the issue.

* * *“It cannot reasonably be disputed that, in general, senior citizens and the elderly are more susceptible to falls and injuries from falls, especially where there is some defect present in a walking surface, considering natural frailities and the loss of agility and balance that unfortunately come with age.”

that, in the context of the open and obvious danger doctrine, an objective standard is used and that the fact-finder must consider the condition of the premises, “not the condition of the plaintiff.”

But, Murphy continued, under MCL 554.139(1)(a)

defendant had a legal obligation to keep the sidewalk “fit for the use intended by the parties.” (emphasis added.)

The express language of the statute has a subjective component to it, where the language refers to the parties’ intent as to use. The parties’ intent here, clearly and necessarily, was that the sidewalks would be used to walk on for purposes such as ingress and egress relative to the apartments.

But encompassed within that intent and the parties’ knowledge was the fact that the sidewalks would be used to a great extent by the elderly.

Murphy argued that a jury should decide whether the sidewalk was fit for the use intended by the parties.

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